Opinion

Executive discretion to the extreme

"To contend that the obligation imposed on the president to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and is entirely inadmissible."

— U.S. Supreme Court, 1838

Congressional Republicans' long-simmering dismay about Barack Obama's offenses against the separation of powers became acute when events compelled him to agree with them that the Affordable Care Act could not be implemented as written. But even before he decreed alterations of key ACA provisions — delaying enforcement of certain requirements for health insurance and enforcement of employers' coverage obligations — he had effectively altered congressionally mandated policy by altering work requirements of the 1996 welfare reform; and compliance requirements of the No Child Left Behind education law; and some enforcement concerning marijuana possession; and the prosecution of drug crimes entailing mandatory minimum sentences; and the enforcement of immigration laws pertaining to some young people.

Republicans tend to regard Obama's aggressive assertion of enforcement discretion as idiosyncratic — an anti-constitutional impatience arising from his vanity. This interpretation is encouraged by his many assertions that he "can't wait" for our system of separated powers to ratify his policy preferences. Still, to understand not only the extravagance of Obama's exercises of executive discretion, but also how such discretion necessarily grows as government does, read Zachary S. Price's "Enforcement Discretion and Executive Duty" forthcoming in the Vanderbilt Law Review.

Price, a visiting professor at the University of California's Hastings College of the Law, demonstrates that the Constitution's "text, history and normative underpinnings" do not justify the permissive reading Obama gives to the Take Care Clause, which says the president "shall take care that the laws be faithfully executed." It is, says Price, part of America's "deeply rooted constitutional tradition" that "presidents, unlike English kings, lack authority to suspend statutes" or make them inapplicable to certain individuals or groups. Indeed, the Take Care Clause may have been intended to codify the Framers' repudiation of royal suspending prerogatives. Hence the absence of an anti-suspension provision in the Bill of Rights.

Congress' excessive expansion of the number of federal crimes, however, has required husbanding of scarce prosecutorial and judicial resources, which has made enforcement discretion central to the operation of today's federal criminal justice system. But Obama's uses of executive discretion pertain to the growth of the administrative state.

The danger, Price says, is that the inevitable non-enforcement of many federal criminal laws will establish "a new constitutional norm of unbounded executive discretion" beyond the criminal justice system. Price says the enforcement discretion exercised in the context of the resource-constrained criminal justice system provides "no support for presidential authority to decline enforcement with respect to any other given civil regulatory regime, such as the Affordable Care Act."

The difference is between priority-setting and policy-setting, the latter being a congressional prerogative because of Congress' primacy in lawmaking. Absent "a clear statutory basis, an executive waiver of statutory requirements" is "presumptively impermissible."

It has, however, become "a nearly irresistible temptation" for presidents to infer permission from the courts' abandonment of judicial review that limits Congress' power to delegate essentially legislative powers to the executive branch. So, Price asks: "If President Obama may postpone enforcement of the ACA's insurance requirements and employer mandate, could a subsequent president ignore the Affordable Care Act altogether?"

The sprawl of the modern administrative state requires vast delegations of powers, often indistinguishable from legislative powers, to an executive branch whose scale defies even adequate congressional oversight. Fortunately, in the Newtonian physics of our constitutional system, wherein rivalries among the three branches are supposed to trend toward equilibrium, actions often produce equal and opposite reactions. Obama's aggressive assertions of executive discretion are provoking countervailing attention to constitutional proprieties. His departures from the norms proper to the Take Care Clause may yet cause Congress to take better care of its prerogatives.